decisions which shall be entered of record in the Patent Office, "and shall govern the further proceedings in the case."

These sections authorize a revision of the grounds on which the Commissioner refuses a patent on application ex parte, and they do not authorize a revision of the grounds on which the Secretary may act. Manifestly it was the intention of Congress to provide a judicial revision which should be available in every case in which an application ex parte is refused; in other words, that refusal should not be made by an officer whose grounds of decision are not subjected to revision by this section.

Section 4915 provides a still further remedy in case of the refusal of a patent for application ex parte, and applies the remedy to refusal of an application in interference. It directs that:

"Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent, on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not."

This section, and the provisions for appeal to this court, which we have just considered, provide either a formal appeal or an original proceeding substantially appellate in its character, which seems manifestly intended to cover all cases in which a patent is "refused," whether they be cases

of application ex parte or in interference. It is to be observed that in both cases a refusal by the Commissioner is the basis of the remedy; and that it seems to be thus implied that, so far as the executive department is concerned, the examination of a claim for a patent, and the power to decide upon such claim, terminate with him.

But another class of decisions was still to be provided for. The provisions which we have considered relate only to cases in which patents were refused; but it might happen that a patent was improperly granted. A remedy for such cases is found in section 4918, which provides that:

"Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit, and those deriving title under them subsequent to the rendition of such judgment."

In this review of the patent laws, certain facts are prominent. The same statute which provides that the Commissioner of Patents shall "perform all duties respecting the granting and issuing of patents" under the "direction of the Secretary of the Interior," provides expressly and in detail for a regular course of examination; it provides expressly for a regular course of appeals from the primary examiners to the examiners-in-chief, from the examinersin-chief" to the Commissioner in person," and for a decision by him upon the right of an applicant to receive a patent; it does not provide expressly for an appeal from the Commissioner's decision to the Secretary of the Interior, but it

does provide expressly for an appeal and revision of those decisions by this court, or for an original judicial proceeding by which relief against those decisions may be had. These provisions of appeal and relief constitute a system, and when the legislature provides such a system, we must suppose that it was intended to be complete and sufficient. As no place in that system was assigned to the Secretary of the Interior, it cannot have been intended that he should have one. Taken in connection with these provisions, his general power of "direction" must be construed to be a power to direct except when the Commissioner is authorized by the same statute to make "decisions."

We hold, then, that the attempted reversal of the Commissioner's decision by the Secretary, in the case before us, was unauthorized, and therefore a nullity; and that, consequently, the Commissioner, having finally adjudicated that the relators are entitled to a patent, improperly refused to issue the same. The writ of peremptory mandamus will accordingly issue as prayed for.

SIMEON J. Groot et al. vs. FLORIAN R. HITZ ET AL.

EQUITY. No. 8239.

Decided April 14, 1884.

{heica & Justic and Justices MAC ARTHUR and Cox sitting.

1. Where the auditor files with his report alternative statements of an account, he should state which of them he considers the correct one and adopting that leave the parties to file their exceptions.

2. A suit brought by the ward on a guardian's bond, is barred by limitations if not commenced within six years after the coming of age of the ward. (Acts of Md., 1729 and 1798).

3. A judgment recovered against the administrator is not even prima facie evidence against the heir-at-law; the plaintiff must commence de novo against him upon his or her original cause of action, as if no suit had been instituted against the administrator, and the heirs-at-law are at liberty to make any defence that any one else could make to such new suit, including the defence of limitations.

4. The rule in regard to marshalling of assets does not apply to a case where a creditor, having originally, equally with all the other creditors, the right to proceed against the real as well as the personal estate of the debtor, loses by laches the right of recourse against the realty.

STATEMENT OF THE CASE.

This was a creditor's suit commenced by a bill in equity against the administrator of the heirs-at-law of Florian R. Hitz, deceased, having for its object to compel the distribution of personal estate among creditors pro rata, and to procure a sale of the real estate in order to supply the deficiency of personal assets.

The creditor's bill was filed by Groot on the 28th day of July, 1882, and on the 26th of October, the same year, Daisy F. Casparis filed her petition to be made one of the complainants in the cause, and the controversy before the court related entirely to her claim.

The circumstances out of which her claim grew, are the following: She was a minor, and John Hitz, her uncle, was appointed her guardian, on the 20th of April, 1869, and gave his bond as guardian, with Florian Hitz, his brother, as surety. On the 28th of September, 1874, the petitioner became 21 years of age. On the 9th of April, 1880, she instituted a suit on this bond against Florian Hitz, the surety.

He died intestate, and an administrator was appointed who was made party to the suit in the usual way, and there was finally a judgment for assets against the administrator. This was on April 4th, 1882. In July, as already stated, this original bill was filed, and in October of the same year the petition of Daisy F. Casparis was filed. The defendants, the heirs-at-law of Florian Hitz, by their guardian, filed a plea of limitations to the claim, and there was a general demurrer to this plea by the petitioner. The case was referred to the auditor who made two alternative statements of the administrator's account, and of the distribution of the personal and real assets, in one of which he included the claim of the petitioner, and from the other he excluded it; and the petitioner excepts to the account which excludes her claim, and the heirs to the other alternative statement.

ENOCH TOTTEN for Casparis.

1. The plea of the Statute of Limitations, interposed by the administrator, ought to be disregarded or stricken out. It does not lie in the mouth of an administrator, who is a public officer, with duties defined and prescribed by law, and the first of them is to pay all the just debts of his intestate, if he have the means. The statute prescribes that:

"It shall be the duty of all executors and administrators to pay all just claims against the deceased, exhibited to them, or a just proportionable part thereof, according to the assets." Thompson's Digest, page 38, § 79.

This case does not come within the principle of the cases relied upon in behalf of the heirs-at-law. The equity court had, by decree, declared that the assets were insufficient for that purpose, and had decreed that the realty should be sold to pay the debts. It had jurisdiction for this purpose and for no other. This decree had been passed, and the sale had actually taken place. At the time when the case was referred to the auditor for the distribution of the proceeds, the sale had been finally ratified by the court, and the funds were in its hands, and constituted equitable assets for the sole purpose of paying the just debts of the intestate. Dixon